Catholic parishes in Denver lose appeal over Colorado’s Universal Preschool Program, with judges ruling the admissions rule applies equally to all schools.
On September 30, 2025, the U.S. Court of Appeals for the Tenth Circuit rejected an appeal by two Catholic parishes and the Archdiocese of Denver in their challenge to Colorado’s Universal Preschool Program (UPK). The case focused on whether faith-based preschools that accept state funding can refuse to admit students based on sexual orientation or gender identity.
The dispute began after Colorado created UPK in 2020, offering free preschool statewide. Participating schools must agree not to deny children enrollment based on race, religion, income, disability, sexual orientation, or gender identity. Catholic preschools argued that this requirement conflicted with Catholic teaching and sought an exemption.
The district court denied relief, finding the rule neutral and generally applicable. The Tenth Circuit affirmed, with Judge Federico writing that the law “applies to all preschools regardless of whether they are religious or secular” and does not exclude faith-based providers from participation.
While the original lawsuit included staffing concerns, the state later removed employment nondiscrimination rules. The district court held those claims moot, leaving only the admissions dispute on appeal.
The panel also rejected arguments that program preferences for students with disabilities or in Head Start created unlawful exemptions, noting that those categories were tied to federal and state education mandates.
The case now raises the possibility of review by the U.S. Supreme Court. In recent years, the Court has ruled in favor of religious schools in Trinity Lutheran v. Comer (2017), Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022). But the Tenth Circuit distinguished those cases, saying they dealt with outright exclusion of religious schools from public benefits, whereas Colorado’s law allows religious schools to participate so long as they accept all students. Whether the Court views the nondiscrimination rule as a neutral condition or an unconstitutional burden on free exercise could determine the outcome if the case is appealed further.
Commentary:
The Supreme Court has shown a willingness to protect religious schools from being excluded from public funding programs. In the past decade, the Court ruled that states cannot deny public benefits simply because a school is religious or uses funds for religious purposes. That line of cases gives the Catholic preschools a potential path forward if they ask the Court to review this case.
The key difference here is that Colorado has not excluded religious schools outright. Instead, the state requires all schools that accept funds to follow nondiscrimination rules for admissions. The Tenth Circuit viewed that as a neutral condition that applies equally to religious and secular schools. The Supreme Court would have to decide whether that condition crosses the line into unconstitutional interference with religious practice.
Some justices may see Colorado’s requirement as a valid rule that promotes equal access to public programs. Others may view it as forcing religious schools to choose between their beliefs and public funding. That tension could attract the Court’s attention, especially since another Colorado case reached the opposite result in district court earlier this year.
If the Court takes the case, the outcome may hinge on whether a majority interprets nondiscrimination as a neutral rule or as a targeted burden on religious exercise. Given the Court’s recent record, the plaintiffs may believe they have a receptive audience.
For now, Catholic preschools in the Archdiocese of Denver cannot join UPK unless they comply with the student admissions nondiscrimination requirement. A related case involving Darren Patterson Christian Academy remains pending before the Tenth Circuit, with a ruling expected in 2026.
Tags: Colorado preschool lawsuit, Tenth Circuit ruling, Catholic schools admissions, Archdiocese of Denver case, Universal Preschool Program
TLDR summary (“Too Long Didn’t Read”):
The Tenth Circuit has upheld Colorado’s Universal Preschool nondiscrimination requirement, ruling against two Catholic parishes and the Archdiocese of Denver. At issue was whether preschools receiving state funding could refuse to admit students based on sexual orientation or gender identity. On September 30, 2025, the appeals court affirmed a lower court decision that found the rule neutral and generally applicable. The case was narrowed to admissions after the state dropped staffing nondiscrimination provisions earlier in litigation. The ruling could reach the U.S. Supreme Court, which has previously sided with religious schools in funding disputes but has not yet weighed in on conditions like Colorado’s nondiscrimination rule. Catholic preschools remain excluded unless they comply, while a separate case involving Darren Patterson Christian Academy is pending, with a decision expected in 2026.
AI Disclaimer: This article was prepared with the assistance of AI based on the official court opinion.